The opinion of the court was delivered by: DuBois, J.
This is an action seeking review of the final decision of the Social Security Commissioner ("Commissioner") denying plaintiff Richard Curran's claims for Disability Insurance Benefits. The Court referred the case to United States Magistrate Judge Arnold C. Rapoport for a Report and Recommendation ("R & R"). Magistrate Judge Rapoport issued an R & R, recommending that Plaintiff's Motion for Summary Judgment or, in the Alternative, Plaintiff's Motion for Remand be denied. Plaintiff filed Objections to the R & R.
For the reasons that follow, plaintiff's Objections to the R & R are sustained in part, overruled in part, and dismissed in part. The R & R is rejected in part, and approved and adopted in part. The Court grants Plaintiff's Motion for Remand and remands the case to the Commissioner for further proceedings consistent with this Memorandum. Plaintiff's Request for Review is granted to the extent it seeks a remand and is denied in all other respects. Plaintiff's Motion for Summary Judgment is denied.*fn1
The background of this case is set forth in detail in the Magistrate Judge's R & R and will be recited in this Memorandum only as necessary to address the issues presented by Curran's Objections.
Curran filed for Disability Insurance Benefits based, inter alia, on a shoulder injury and depression. Administrative Law Judge Linda Bernstein held a hearing and found that Curran was not disabled. The case concerns three aspects of the ALJ's decision: (A) her conclusion that Curran has a limited ability to reach overhead; (B) her determination that Curran's depression is not "severe;" and (C) her questioning of a vocational expert.
A. Shoulder Injury and Reaching
The ALJ concluded that Curran's shoulder injury is "severe." (R. 16.) When assessing his residual functional capacity ("RFC"), she limited him to sedentary work without overhead reaching. (R. 21, 25.) However, she determined that there are jobs that exist in significant numbers in the national economy that Curran can perform and found him "not disabled." (R. 25-27.)
Curran argued in his motion for summary judgment that the ALJ's limitation on only overhead reaching was not supported by substantial evidence. (Mot. Summ. J. 4-10.) He asserted that the limitation should have included reaching in all directions. (Id.) Magistrate Judge Rapoport rejected that argument, concluding that Curran's ability to reach is irrelevant because sedentary work does not require reaching. (R & R 17-18.) Curran objects to that conclusion.
The ALJ found that Curran had mild functional limitations in (1) daily living, (2) social functioning, and (3) concentration, persistence, or pace. (R. 18-19.) However, she concluded that his mental impairment was not severe and that he therefore was "not disabled." (R. 18-19.) Curran asserted that this determination was not based on substantial evidence (Mot. Summ. J. 4-10.) -- an argument Magistrate Judge Rapoport rejected. (R & R 20-23.) Curran objects to the Magistrate Judge's conclusion.
C. Questioning the Vocational Expert
The ALJ held a hearing and asked the vocational expert whether a person could perform sedentary work if he were limited in overhead reaching. (R. 51.) The expert stated that a person so limited could perform such work, noting that "most of all sedentary work isn't really characterized by overhead work." (Id.) Based on this testimony, and in reliance on the Medical-Vocational Guidelines, the ALJ concluded that jobs which Curran can perform exist in substantial numbers in the national economy. (R. 26.)
Curran argued in his motion for summary judgment that the ALJ's conclusion was not based on substantial evidence. (Mot. Summ. J. 13-15.) He contended, in part, that the ALJ's hypothetical was insufficient because it did not include Curran's mental limitations. (Id. 14-15.) Without addressing this aspect of Curran's argument, Magistrate Judge Rapoport determined that the ALJ properly ...